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2025 DIGILAW 27 (RAJ)

Kamlesh v. State of Rajasthan

2025-01-06

FARJAND ALI

body2025
ORDER FARJAND ALI, J. 1. The instant Criminal Misc. Petition has been filed challenging the order dated 30.05.2024 passed by the learned trial Court by which the trial Judge dismissed the Petitioners' application under Sections 91, 311 of the Cr.P.C. and Section 165 of the Indian Evidence Act seeking the summoning of call details and mobile call locations of the concerned Police Officials. 2. Briefly stated the facts of the case are that the petitioners had been apprehended in connection with FIR No.207/2023 for alleged offences under the Arms Act and the NDPS Act, with contraband opium and a desi pistol purportedly was recovered from their vehicles. Following the investigation, the police had filed a chargesheet, and charges had been framed, which were denied by the petitioners. The petitioners contended that a search conducted at their residence and fields had yielded no illegal articles, and they had been taken into custody in a manner that suggested that the recovery had been fabricated by the police. They filed an application for summoning of call details and locations of the police officials involved, but their application under Sections 91, 311 Cr.P.C, and 165 of the Indian Evidence Act had been dismissed by the trial court on 30.05.2024, necessitating the present petition before this Court. 3. Learned counsel for the petitioners contended that the learned trial Court erred in dismissing the application filed by the petitioners under Sections 91 and 311 of the Cr.P.C. and Section 165 of the Indian Evidence Act. It is argued that the Trial Court has passed the order on the basis of conjectures and surmises, overlooking crucial facts and the submissions advanced by the Petitioners. He further contended that the recovery of contraband was fabricated, with the police unlawfully detaining them and subsequently planting incriminating evidence. They assert that the call details and mobile call locations of the concerned police officials are crucial to establishing the fabricated nature of the prosecution’s case and are essential for a just and equitable adjudication of their innocence. It is stated that the Petitioners have right to a fair trial and the importance of considering all available evidence to ensure a just outcome, particularly in a case where their liberty is at stake. 4. Heard the learned counsel for the parties and perused the material available on record. 5. It is stated that the Petitioners have right to a fair trial and the importance of considering all available evidence to ensure a just outcome, particularly in a case where their liberty is at stake. 4. Heard the learned counsel for the parties and perused the material available on record. 5. This Court has made an elaborate discussion with regard to the controversy involved in the case of Chotha Ram & Anr. Vs. State of Rajasthan passed in SBCRLMP No.3672/2023 decided on 04.03.2023. The relevant paragraphs are being reproduced hereunder:- “11. This Court feels that if for the purpose of reserving and saving the right of the accused and for the sake of justice, if a prayer is made to summon the electronic evidence so as to elicit the truth behind the story, then such prayer ought not to have been declined. When the assertion is made that what is wrong may be proved to be wrong and vice-versa in the end so that the oil and truth must come out, then the defence must be given an opportunity because not giving an opportunity would mean denying them to counter the charges or to defend themselves as well as closing the door of justice for truth to enter in. 12. It is true that after commencement of the trial, the opportunity is being given to the prosecution to lead or adduce evidence in support of charges, whereafter an explanation under Section 313 of Cr.P.C. will be sought from the accused and then the stage of entering into defence under Section 233 of Cr.P.C. would come. It is also true that until the stage of taking the evidence of the defence on record comes, the defence evidence is not required to be taken on record and for that purpose no defence material would be summoned but here is not the question of taking or tendering the defence evidence or relying upon that rather it is observed that, as per the Rules and Regulations of the Telecom Regulatory Authority of India, the data of call record is deleted automatically after lapse of one year, then it becomes the duty of the Court to save the data so as to enable the defence or any other party to take use of it at the appropriate stage. In fact, ordering saving/storing/preserving data from destroy would not mean that at the premature stage defence evidence is taken. 13. It does not mean that allowing an application under Section 91 of Cr.P.C. for protection of electronic records from deletion and summoning the same to keep on record would mean taking evidence of defence at a nascent stage; rather, it is being done only for the purpose of saving and protecting the evidence from being destroyed. In fact, the defence evidence shall be taken and considered after the stage of Section 233 of Cr.P.C. would come. The Court of Law and Justice is not supposed to tolerate vanishing or damaging the evidence of vital importance, the presence of which would be displaying the truth which would further mean that the truth will prevail, that the truth will be separated and set aside from the lies. 14. It is not comprehensible that what is the harm if the evidence of vital importance, which may play a key role in adjudicating the charges, is saved, stored, preserved and protected from being destroyed till the actual stage of consideration of that evidence would come. 15. This Court is of the firm opinion that if the accused persons are taking risk in making prayer for summoning call data record and tower locations record of the police officers, who claim that they apprehended the accused persons from a particular place and at a particular time, which if produced and found genuine then it may be a further piece of evidence against them as the story of the prosecution shall be proved genuine, however, imagine that if the call data record and tower locations of the police officers are not found to be matching with the time and place mentioned in the seizure memo, then it may be a serious dent in the story set out in the charge-sheet and so then there is no legal impediment in summoning the material even at a premature stage just for the purpose of saving the same from deletion. The main object of the courts are meant to impart justice and for that very object it is established. If something suggesting for truth to come on record then in my opinion not allowing the same would mean hiding the truth. 16. The main object of the courts are meant to impart justice and for that very object it is established. If something suggesting for truth to come on record then in my opinion not allowing the same would mean hiding the truth. 16. Why an opportunity could not be granted to the accused to disprove the charges, though such evidence would neither be considered before its actual stage nor any finding would be given on it but at least an order for protection/preservation of the evidence can certainly be passed. 17. A plain reading of Sections 91 and 311 of Cr.P.C. if read together would elucidate that whenever it appears to the Court that any evidence is essential for the just decision of the case, then it may call or recall such evidence or witness at any stage of the trial. Even after culmination of trial and during pendency of the appeal, such task can be undertaken by the Court by taking resort to Section 391 of the Cr.P.C. as the ultimate object of the Court is to impart justice and justice only. 18. For the purpose of making differentiation between truth and lie, the course of law is supposed to provide ample opportunities to the parties of the lis so that the ultimate task of securing the ends of justice can be achieved. 6. This Court, while acknowledging the principles articulated in Chotha Ram & Anr. Vs. State of Rajasthan (supra) , recognizes the paramount importance of preserving potentially exculpatory evidence. In the present case, the petitioners have alleged that the seizure memo is a fabricated narrative and have presented video evidence to support their claim of discrepancies in the official timeline of events. This Court, mindful of the principles of a fair trial and the need to ensure the integrity of the judicial process, finds that denying the petitioners access to potentially crucial evidence, such as the call details and locations of the concerned police officers, could significantly prejudice their defense. 7. The Court emphasizes that this order does not pre-judge the admissibility or weight of the evidence. The purpose is to safeguard potentially exculpatory evidence from destruction and to ensure its availability for consideration at the appropriate stage of the proceedings. 7. The Court emphasizes that this order does not pre-judge the admissibility or weight of the evidence. The purpose is to safeguard potentially exculpatory evidence from destruction and to ensure its availability for consideration at the appropriate stage of the proceedings. This will enable the defence to effectively challenge the prosecution's version of events and present their own case, thereby facilitating a just and equitable adjudication of the matter. The Court recognizes that the timely preservation of such evidence is crucial, particularly in light of the ephemeral nature of electronic data, to ensure a fair and impartial trial. 8. Furthermore, this Court acknowledges the pivotal role of electronic evidence in legal proceedings, especially when it pertains to call details and mobile tower locations, as alleged in the present case. To ensure the admissibility and integrity of such electronic records, it is imperative to adhere to the requirements laid down under Section 65B of the Indian Evidence Act, 1872. This Section mandates that any information contained in electronic records, which is intended to be produced as evidence, must be accompanied by a certificate confirming its authenticity, generated by a person occupying a responsible position concerning the operation of the relevant device or the management of the relevant activities. It is reproduced hereunder for ready reference- 65B. Admissibility of electronic records. –– “ (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: –– (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether–– (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, –– (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section, – (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.––For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.” 9. In view of the above, the instant Criminal Misc. Petition is allowed and the order impugned dated 30.05.2024 passed by the Learned Special Judge, NDPS cases, Pratapgarh in Criminal Misc. Case No.68/2024 is hereby quashed and set aside. In view of the above, the instant Criminal Misc. Petition is allowed and the order impugned dated 30.05.2024 passed by the Learned Special Judge, NDPS cases, Pratapgarh in Criminal Misc. Case No.68/2024 is hereby quashed and set aside. The application moved on behalf of the petitioners under Sections 91, 311 of the Cr.P.C. and Section 165 of the IEA is allowed and it is directed that the earned trial Court shall issue necessary directions to the respondent-State, the concerned police officers as well as the service provider company of the respective mobile numbers for providing requisite call details and tower locations of the police officers, names of which are mentioned in the application preferred on behalf of the petitioners. The police officer of the concerned Police Station shall also be directed to procure the above evidence at the earliest so as to prevent them from destroying, vanishing and deletion. After receiving the above evidence, the trial court is directed to keep it on record of the case along with certification under Section 65-B of Indian Evidence Act and the same could be utilized by both the parties during the examination of the witnesses. The accused shall be permitted to ask questions from the concerned police officers by confronting them with the electronic record produced. The above task is permitted only with a view to ascertain or shake the credibility of the witnesses and to enable the parties to bring the truth on record and which would not mean leading the defence evidence rather it would be a cross check of the prosecution evidence. The accused shall be at liberty to use these call details at the appropriate stage of the trial. 10.The stay petition stands disposed of.